For federal funding and regulation, and exceptions offered by the FHWA
This page elaborates how the the village’s ordinance declaring an existing public use of the privately owned land in the Rural Heritage Corridor precludes the county from taking it and therefore qualifies the county to still utilize federal funding for road projects and for design exceptions offered to the standards.
Federal Funding Intends to offer Design Flexibility
In the Design Flexibility Publication regarding federal funding for road projects, the US Department of Transportation Federal Highway Administration offers much insight into their willingness to allow flexibility on the “design standards”.
With the Village of Homer Glen’s legislation declaring that the “Aesthetic, scenic, historic, and cultural resources and the physical characteristics of an area” are “important factors because they help give a community its identity and sense of place and are a source of local pride.”, the county should still qualify for federal funding to keep and maintain the road within their county jurisdiction, and retain access to federal funding.
Intent to offer flexibility of standards
The Publication states on Page 6:
In 1995, Congress reemphasized and strengthened this direction through the NHS Act, which states, in section 304:
A design for new construction, reconstruction, resurfacing…restoration, or rehabilitation of a highway on the National Highway System (other than a highway also on the Interstate System) may take into account…[in addition to safety, durability and economy of maintenance]…(A) the constructed and natural environment of the area; (B) the environmental, scenic, aesthetic, historic, community, and preservation impacts of the activity; and (C) access for other modes of transportation
What the Design Exception Process is
The Publication states on Page 49:
there are situations in which the application of even the minimum criteria would result in unacceptably high costs or major impact on the adjacent environment. For such instances when it is appropriate, the design exception process allows for the use of criteria lower than those specified as minimum acceptable values
If the highway project is not on the NHS, the State does not need FHWA approval for a design exception
Our road is not on the NHS, therefore it qualifies for administrative exemption and does not require FHWA approval, and that
The process of justification and documentation, although not required, can be followed by States with exemption from FHWA oversight on non-NHS projects, as well. These criteria are as follows: 1. Design Speed. 2. Lane Width. 3. Shoulder width. 4. Bridge width. 5. Structural Capacity. 6. Horizontal alignment. 7. Vertical Alignment. 8. Grade. 9. Stopping sight distance. 10. Cross Slope. 11. Superelevation. 12. Vertical Clearance. 13. Horizontal Clearance.
How an engineer can defend a design exception
The Publication states on Page 52:
The best defense for a design engineer is to present persuasive evidence that the guidelines were not applicable to the circumstances of the project or that the guidelines could not be reasonably met.
Homer Glen Passing a strong ordinance declaring the Existing Public use of the privately owned scenic land and rural heritage corridor is giving the county engineers the documentation they need to say the project guidelines can not be reasonably met, and therefore qualifies for a design exception.
If further goes on to affirm that the engineer documenting this would count as the the legally persuasive evidence in favor of the exception.
If the justification documented by a designer completely describes the physical and environmental factors that make the exception or any design necessary, it is likely that this will be legally persuasive that the correct procedures were followed and ultimately the appropriate decision was made. In addition, it is helpful to have statements by other design experts who concur with the decision in the documentation.
And further still to remind engineers that:
avoiding unique solutions is not the answer.
So engineers working on the road have a responsibility and protection to declare and work within the exemption framework.
Federal Intent, state application
Listed above is the federal intents and requirements for funding. Per Federal Law (23 CFR 625.3(a)(2)), This project is to be administered by the state, because this project is not on the NHS (national highway system). So state regulations are below.
Illinois Procedure for obtaining design exceptions
Phase I is the only time to obtain design exception approval.
Per the Illinois Department of Transportation BDE manual, the state’s Bureau of Design and Environment Manual, which establishes the protocols, the Phase I project study group is responsible to
obtain design exception approval (if needed) from BDE and if necessary FHWA.
and on page 520 that:
Location/design study personnel must ensure that major design decisions are finalized during the Phase I engineering studies. This minimizes the time and effort needed to prepare design details during final plan preparation in Phase II. Examine and document any design exceptions from current policies and explain the reasons for the variance; see Chapter 31.
The village must pass legislation now to create the challenges the engineer needs to to apply for the exception. This must happen during phase I.
How the Engineer applies for the exception
Chapter 31 on page 2073 of the BDE manual lays out the procedure through which the design engineer may apply for exceptions. As this project is not on the interstate highway system, it is considered a “level two” design exception and requires the engineer to file some forms (form BDE 3100, BDE 3107, and BDE 3108) with BDE and may be administratively approved by BDE.
The Village must frame the legislation so as to create the challenges the engineer needs to apply for the exception. This must happen during phase I.
Types of Highway Improvements that may be funded
The Design Flexibility Publication states on Page 42:
There are four basic types of physical improvement projects, some of which must comply with standards and others that do not have to comply. These types of improvement projects are discussed in the following paragraphs.
The four types are
- New Construction
The publication states that 3R projects:
generally do not involve more than minor changes to roadway alinement and geometry, except to improve safety, FHWA and the State DOTS acknowledge that the AASHTO Green Book criteria do not always have to be adhered to for these projects. Because 3R projects have minimal impact, application of the Green Book design criteria may affect character of a roadway. As stated in the Green Book, existing roads that do not meet the guidelines for
geometric design are not necessarily unsafe and do not necessarily have to be upgraded to meet the design criteria:
The fact that new design values are presented herein does not imply that existing streets and highways are unsafe, nor does it mandate the initiation of improvement projects …For projects of this type (resurfacing, restoration, or rehabilitation [3R]), where major revisions to horizontal and vertical curvature are not necessary or practical, existing design values may be retained.
Let the county declare this project as a 3R rather than a reconstruction so funding may be received and standards do not have to be adhered to.
Work Prior to NEPA
The federal highway administration clearly states on https://www.fhwa.dot.gov/legsregs/directives/orders/66401a.cfm
What is FHWA’s policy regarding which project activities may be advanced prior to a NEPA decision
State departments of transportation (DOTs) and other contracting agencies may perform preliminary design activities prior to a NEPA decision regardless of the project delivery mechanism that is used. However, final design activities may not be advanced until a NEPA decision has been issued (Link)
Title 23, CFR, Section 636.103 (23 CFR §636.103), defines the terms “Preliminary Design” and “Final Design” as follows:
- (1) “Final design means any design activities following preliminary design and expressly includes the preparation of final construction plans and detailed specifications for the performance of construction work.”
- (2) “Preliminary design defines the general project location and design concepts. It includes, but is not limited to, preliminary engineering and other activities and analyses, such as environmental assessments, topographic surveys, metes and bounds surveys, geotechnical investigations, hydrologic analysis, hydraulic analysis, utility engineering, traffic studies, financial plans, revenue estimates, hazardous materials assessments, general estimates of the types and quantities of materials, and other work needed to establish parameters for the final design. Prior to completion of the NEPA review process, any such preliminary engineering and other activities and analyses must not materially affect the objective consideration of alternatives in the NEPA review process.”